Índice Documentación

ADVOCATING FOR CULTURAL RIGHTS
CULTURAL RIGHTS: AT THE END OF THE WORLD DECADE FOR CULTURAL DEVELOPMENT
Halina Niec. Jagiellonian University, Krakow, Poland

Abstract

The World Decade of Cultural Development, from 1988 to 1997, has been a great humanistic process which has manifested itself through interwoven material and intellectual spheres which have ultimately served to enrich one other. In light of the increased interest devoted to cultural rights over the past decade through the work accomplished by UNESCO and the Committee on Economic, Social and Cultural Rights, individuals and groups alike may be enjoying their cultural lives to an unprecedented degree worldwide. Attention, however, is only the first step in the lengthy pursuit of a participatory celebration of the cultural heritage of all peoples, be they in the majority or the minority. States must come to not only recognise various cultures, but actively seek, through legislation, education, and financial aid, to protect and promote the individuals and groups whose cultures deserve to be recognised and allowed to flourish. Non-governmental organisations should also share as a stimuli for this growth of cultural awareness, be they regional or international. Cultural rights bear as much precedent in conflict prevention as do rights of a civil and political nature.

Summary

1. Introduction
2. From Conception to Recognition
3. The Reasons Behind the Negligence
4. General Remarks on the Catalogue of Cultural Rights
5. Developing a Catalogue
6. From the Catalogue to States' Obligations
7. Incorporating a Monitoring Mechanism
8. Suggestions for Future Work

1. Introduction

The World Decade of Cultural Development, from 1988 to 1997, has been a great humanistic process which has manifested itself through interwoven material and intellectual spheres which have ultimately served to enrich one other. Due to an unparalleled scale of phenomena within the framework of this Decade, UNESCO and the UN have been inspired to create a formal but independent structure within which eminent figures have identified, described, and analysed basic questions and new challenges concerning relations between development and culture in a report entitled Our Creative Diversity. ¹

Javier Perez de Cuellar, in presenting the results of the Commission's work, asserted that this report was not a treaty, a work of original research, nor a handbook on world cultural affairs, but rather a call to its audience to actively apply themselves in selected priority areas. This audience, comprised of community activists, field workers, artists, scholars, governmental officials, politicians, and their respective communities, was summoned by the report to reflect upon the role of culture in the lives of nations, communities, groups, and individuals in an attempt to stimulate to direct participation in the creation of new models of human development.

In the field of cultural rights, the Commission proposed several steps to be taken by the international community in order to secure the protection of cultural rights. The first step would be to for the International Law Commission to prepare an inventory of cultural rights, which are not protected by existing international instruments. The ILC would then proceed to draft an International Code of Conduct on Culture which would subsequently be included in the Draft Code of Crimes against the Peace and Security of Mankind ² — a complex document which the ILC has been formulating for some time ³. Once the Code of Crimes against the Peace and Security of Mankind is expanded to include the International Code of Conduct on Culture, it would be possible to bring violators of cultural rights ''ranging from the persecution of individuals to ethnic cleansing" before the International Criminal Court (ICC), if this court is indeed established. A graduated system of enforcement procedures must be developed, one which would prove successful with the creation of an International Office of the Ombudsperson for Cultural Rights who would a) act on behalf of those whose cultural rights are violated, b) would prevent conflicts between governments and individuals and groups from erupting, and c) would serve to mediate between governments and aggrieved individuals or groups in hopes of reaching a satisfactory solution. These functions would be effectively carried out in co-operation with regional networks and international agencies ⁴.

Despite this recent spotlight, cultural rights still remain "the Cinderellas of the human rights family" ⁵. From a legal standpoint these rights are the least developed within the human rights spectrum. This characterisation may surprise those who have been observing the magnitude of work done by international bodies including UNESCO and the Committee on Economic, Social and Cultural Rights. Yet, when one considers this precarious position as being a result of the differing historical origins surrounding recognition of cultural rights, its mystery is denied. It is time for change. Now, on the eve of the 50th anniversary of the Universal Declaration of Human Rights (UDHR) ⁶ that proclaimed and broadly defined cultural rights within the scope of human rights, the importance of cultural rights should be recognised by reinforcing the legal content of these rights, in addition to making these rights meaningful for individuals and groups.

2. From Conception to Recognition

In the process of transforming the content of the UDHR into treaty binding provisions, rights of social, economic, and cultural regard were separated from classical political and civil rights by their division into two separate treaties. Despite the fact that the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both refer to the unity of all human rights ⁷, the separation was widely recognized as a victory for those who denied the legal character of economic, social and cultural rights.

Those who ignored the legal character of economic, social and cultural rights insisted upon the two separate Covenants. Their argument stemmed from their belief in the different natures of the rights: while the enforcement of political and civil rights requires the State firstly to refrain from specific actions, the enforcement of economic, social and cultural rights requires the State to take a proactive role involving funds, time and processes. Moreover, this difference in nature, they argued, demanded a difference in States' obligations to implement the rights. As a result, in the realm of political and civil rights, there are clearly defined obligations of States to establish a means of judicial redress within their internal legal system (i.e. an obligation of conduct). The fulfilment of these obligations can be easily assessed by an international community acting through specially designed treaty organs. No such clarity of the States' obligations regarding economic, social and cultural rights exists. Considering the inherent nature of economic, social and cultural rights, the implementation of these rights unequivocally obligates results. Thus, it was argued that these rights could be defined as programmatic rights. Since these are not justiciable (i.e. legal rights), States are not required stand up to international scrutiny in regards to the application of these rights.⁸

This extreme view was challenged by many jurists, human rights activists ⁹, and various organs of the UN system, leading to its "eradication" by numerous international declarations who uphold these rights as legal. For example, in paragraph 1 of the Vienna Declaration and Programme of Action of 1993 it states, "The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfill their obligations to promote universal respect for, and observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question." ¹⁰ Paragraph 3 of the same document adds, "All human rights are universal, indivisible and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." The complete listing of documents which reiterate the acknowledgment of economic, social and cultural rights as legal rights, is too lengthy for this examination. In summation, then, we can turn to the writings of Steiner and Alston: " ...[In] formal terms for the purposes of international law, debate over whether economic rights are 'really' rights was settled long ago." ¹¹ The obstacles which remain today are to define these rights and, according to the above quoted authors, ". . . to identify effective approaches to implementation--i.e. to the means by which economic, social and cultural rights can be given effect and governments can be held accountable to fulfill their obligations." ¹²

3. The Reasons Behind the Negligence

While economic, social and cultural rights have been the topic of international debate for years, it is the category of cultural rights which remains the least developed in terms of legal content and enforceability ¹³. The neglect is due to an impressive number of reasons including political and ideological tensions surrounding this set of rights, as well as internal tensions which surface when an individual's rights conflict with group rights and State policies. Potential scenarios of internal conflict may involve an individual cultural identity conflicting with a collective or national identity, or a group claiming that the full realisation of its cultural identity supersedes the recognised frame of cultural autonomy. An additional obstacle preventing a speedy progress of development stems from the fact that cultural rights are rights to culture. This point is obvious; what is not obvious is what exactly the term "culture" includes, despite numerous existing definitions included in various international documents. However, it is intrinsic in the world of culture to include many aspects of human life. The difficulty arises when trying to determine which rights are cultural rights, and which rights are not cultural rights but involve cultural aspects ¹⁴.

Yet another contributing factor to the difficulty of obtaining precision in defining the content of many cultural rights is the conflict between the universality of human rights and the concept of cultural relativism ¹⁵. On one hand, individuals seek preservation of a group's culture that has shaped and defined their identity as a member of that collective group. But when the individual identifies certain manifestations of his or her culture, such as traditional practices, as harmful or in violation of his or her universally acknowledged human rights (but does not choose to divorce him or herself entirely from the culture), is it the individual who has the right to declare aspects of the group's cultural identity a violation of their human rights, or is it the group which has the right to maintain its practices and rituals in the name of cultural identity? Whose rights and, accordingly, legal standings are of paramount importance in such a conflict - the individual's or the community's? The answer is far from simple. In the Vienna Declaration and Programme of Action quoted above, it is stated that "all human rights are universal". To further clarify the matter, according to the 1992 UN Declaration On The Rights of Minorities, minorities are prohibited from continuing those practices which are in direct conflict with international law and violate universal human rights ¹⁶ ; However, the problem of and the tensions surrounding cultural relativism versus universal human rights still exist, and the issue deserves open discussions which must not obscured by political pressure.

4. General Remarks on the Catalogue of Cultural Rights

The efforts to determine those which should be included in the category of cultural rights is an ongoing process which began with the inception of the UDHR ¹⁷. It is appropriate to check, from time to time, the developing catalogue of rights to determine whether through the international practices the content of the catalog is progressing to a more stable state of realization. The aim of this exercise is twofold: to create an awareness of what cultural rights must be included and to inform the States of their obligations regarding these rights. This last aspect is particularly important because there is a need to strengthen the States' commitment to adhere to and fulfill their obligations towards cultural rights, that they may be held accountable for any infringements.

When examining international human rights law, we find that cultural rights as human rights have been declared both at the universal and regional levels. Universally, these rights are declared in the UDHR Article 27 which states:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

And in Article 22 of the same document:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Cultural rights acquired a treaty binding character in Article 15 of the ICESCR which states:

The State Parties to the present Covenant recognize the right of everyone:

a. To take part in cultural life;

b. To enjoy the benefits of scientific progress and its applications;

c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The State Parties to the present Covenant undertake to represent the freedom indispensable for scientific research and creative activity.

4. The State Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.

On the regional level, the rights to culture are formally declared in the American Declaration on the Rights and Duties of Men (Article 13) ¹⁸, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Article 14) ¹⁹, and in the African Charter on Human and Peoples' Rights (Article 17) ²⁰. These treatises acknowledge these rights with a particular emphasis on those of the individual.

As for peoples, within the international frame of human rights there also exists the recognition of cultural rights as a collective right. For example, the first Articles of both the ICESCR and the ICCPR state that "All peoples have the right of self-determination. By virtue of that right they . . . freely pursue their economic, social and cultural development." This free pursuit of cultural development, linked to and strengthened by the political right of self-determination, in turn allows people to preserve their cultural identity. This concept was fully recognized in the Mexico City Declaration on Cultural Policies which was adopted at the 1982 World Conference on Cultural Policies. It was recommended that States, "Respect and work to preserve the cultural identity of all countries, regions, and peoples, and oppose any discrimination with regard to the cultural identity of other countries, regions and peoples." ²¹

Taking such realizations a step further, the African Charter on Human and Peoples' Rights acknowledges the right of all people to cultural development ²². This right is fortified by standardizing the duty of all individuals "To preserve . . . the positive African cultural values.²³" Hence, the collective right to culture supplements the individual's cultural rights.

However, in international human rights law, the protection of ethnic, religious and linguistic minorities is constructed, in principle, as the individual protection of the rights of members of those communities ²⁴. This is reflected in Article 27 of ICCPR. But, the recognition of the collective character of minority rights on the universal level of human rights law cannot be overlooked. In the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, there is a more explicit recognition of the group as an entity with rights than is present in the ICCPR. The Declaration refers to a group dimension in Article 1: "States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their perspective territories, and shall encourage conditions for the promotion of that identity."

On one hand, we may say that Article 15 of ICESCR can be seen as a general, normative framework for a catalogue of cultural rights, yet it only enumerates four general categories of rights without specifically laying out what the concrete entitlements of those categories are. The process of enriching those categories with legal meaning is an immensely complex matter. This being the case, it was necessary to construct a skeletal frame for the categorisation of cultural rights, more so than any other fields of human rights. Cultural rights have an exceptionally internal dynamic due to the fact that culture is a living and growing organism, always manifesting itself in new ways.

5. Developing a Catalogue

While the skeleton exists, the flesh must be attached to the bones, this task being both an advantage and a burden. The content of cultural rights has been interpreted and defined through several legal instruments, those drafted and adopted by UNESCO in particular ²⁵, as complimented by the practice of different international bodies such as the UN Committee on Economic Social and Cultural Rights ²⁶. The result is the growth of a catalogue of cultural rights, despite the fact that its precision is still being calibrated.

In composing a catalogue, we must remember the guiding, fundamental principles that serve to form the foundation of international human rights law -principles specifically designed to safeguard the universality and indivisibility of all human rights. The most basic principle is the obligation to respect and preserve the inherent dignity of every human being ²⁷. The next vital principle, is that of equality which is often pronounced in non-discriminatory and equal opportunity clauses. These principles are what guide us to the core elements of cultural rights, the most fundamental of which is the right of access to cultural life. The next, is the right of "participation in cultural life" as stated in the 1976 UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It ²⁸. This participatory dimension of cultural rights is further strengthened in the UN Declaration on the Right to Development which declares and specifically emphasises the participatory element as being essential to all human rights for all, be they individuals, members of minorities, indigenous people, or population groups subject to vulnerability ²⁹.

In the process of making the right of access to a cultural life and the right to participate in cultural life more concrete, the application of the above stated principles, combined with a wealth of normative instruments, enables us to develop a catalogue by identifying components of these rights. Some of these components, however, may be considered separate. The right to cultural heritage may be considered a cultural right ³⁰, while others may be seen as altogether separate rights with cultural components. One such example is the right to information. This right is a civil right, per se, and is listed in Article 19 of the ICCPR and in Article 10 of the European Convention on Human Rights ³¹. It is agreed that the right to information is a well-defined, justifiable right. But the right to information cannot be considered exclusively a civil right, for the right to participate in a cultural life cannot possibly be achieved without the right to information. With these overlapping complications in mind, we can see that determining which rights should be included in a catalogue of cultural rights is not a simple task. The difficulty in compilation is extreme, and numerous versions currently exist. The size and content of the catalogues often depend on the aims of the classification. For example, in an attempt to create a comprehensive list of cultural rights, one researcher, Birgitta Leander, catalogued 50 different cultural rights classified according to eleven categories. The categories include: Rights to physical and cultural survival, Rights to association and identification with cultural community, Rights to and respect for cultural identity, Rights to physical and intangible heritages, Rights to religious belief and practice, Rights to freedom of opinion, expression and information, Rights to choice of education and training, Rights to participation in elaboration of cultural policies, Rights to participation in cultural life and rights to create, Rights to choice of endogenous development, and Rights to people's own physical and cultural environment ³².

In contrast, the Institute for Interdisciplinary Ethical and Human Rights Studies at Fribourg University in Switzerland produced a Preliminary Draft Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms on the Recognition of Cultural Rights ³³. The list of cultural rights included in this document is not as lengthy as the above mentioned, but the intent appears to have been quite different--to list cultural rights which are unquestionably justiciable so that claims of violation of those rights could be brought before the European Court of Human Rights. The draft states:

Article 1

Everyone both has as an individual and shares with others the right to respect for and expression of his values and cultural traditions in so far as they are not contrary to the requirements of human dignity, human rights and fundamental freedoms; that right includes:

a) freedom to engage in cultural activity, whether in public or in private, and more particularly to speak the language of one's choice;

b) the right to identify with the cultural communities of one's choice and to maintain relations with them; this implies freedom to alter such choice or not to identify with any cultural community;

c) the right not to be prevented from discovering the whole range of cultures, which together constitute the common heritage of humanity;

d) the right to knowledge of human rights and to take part in establishing a culture governed by human rights.

Article 2

1. Everyone has the right to an education which allows full and unrestricted development of his cultural identity in a manner recognising and respecting the diversity of cultures.

2. This right includes freedom to teach and be taught one's own culture and language and to set up whatever institutions are necessary for that purpose in accordance with national law.

3. It includes entitlement to public provision, in proportion to needs and resources, of the means necessary to safeguard the right.

Another example, the Preliminary Draft Declaration of Cultural Rights, was produced at a meeting of experts held in Fribourg in 1995 ³⁴. The chief aims of this group can perhaps be considered more practical than the above examples. The Declaration was prepared with two concerns. In studying the current state of cultural rights, the authors determined that the primary cause, both at the theoretical and normative levels, of the "underdevelopment" of cultural rights resulted from negligence towards the role of cultural identity. Second, the authors agreed that one comprehensive document which details the "logic specific to cultural rights and the cultural dimension of human rights as a whole" would be crucial in replacing the numerous documents which were splintering the topic. The rights listed in the Preliminary Draft are too lengthy to reproduce in this paper in any form other than general: respect for cultural identity, identification with a cultural community, participation in cultural life, education and training, information, freedom of access to heritages, protection of research, creative activity and intellectual property, and participation in cultural policies (It should be noted that these rights are construed as individual rights which can be enjoyed "either alone or in a community with others").

6. From the Catalogue to States' Obligations

This attempt to improve the content and legal character of the catalogue of cultural rights is a long term endeavor and cannot be viewed as a panacea for the underdevelopment and negligence that afflicts this category of rights. There is also a parallel need to address the efficacy of the multifaceted implementation process of these rights in which the States' accountability is of paramount importance. By implementing a method of State accountability which will accurately reflect the States' realization of their obligations, we will, in turn, strengthen the States commitment and thereby increase the actual level of enjoyment of cultural rights.

According to Article 2 of the ICESCR, States are obliged to take immediate steps maximize the availability of their resources in order to progressively achieve the full realization of the rights stated in the Covenant. Therefore, it can be interpreted that States' obligations, for the most part, are obligations of results. Unfortunately, the element of progressive achievement lends itself to an open-ended sense of State obligation which, in turn, diminishes the legal character of the obligations. If we want to evaluate in degrees the progress of a State's adherence to their duties, judicial instruments are not applicable due to the presumably weak legal character of the obligations.

The legal character of these duties was strengthened when a group of experts attended the Limburg conference held in Maastricht, Netherlands in June of 1986, to consider the nature and scope of the accountability of the State to the ICESCR ³⁵. The participants of the conference presented a solid and convincing interpretation of States' legal obligations as introduced in The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. It was declared that:

all States must begin immediately to take steps using all appropriate means necessary (including legal, administrative, judicial, economic, social and educational measures), regardless of the level of their economic development, to achieve full realization of the rights listed; some obligations require immediate full implementation such as the prohibition of discrimination; by no means may a State interpret the Covenant as an opportunity to defer indefinitely their efforts to fulfill their obligations; and when determining whether or not a State has taken adequate measures towards realization of these rights, their use of and access to available resources will be considered ³⁶.

While the authors of the Limburg Principles made great strides in defining States' requirements, perhaps the greatest outcome of their efforts is that their initiative to enumerate situations in which States could be held responsible for failing to comply with the standards listed in the ICESCR ³⁷.

Steps to clarify the culturally legal duties of States was further enhanced by the Committee on Economic, Social and Cultural Rights, General Comment No. 3 (1990) which stressed that regardless of any internationally recognized obstacles, States are required to "take steps" to fulfill their obligations ³⁸. In the same General Comment, the committee pronounced the most important element of the minimum core of obligations, stating that "even in times of severe resource constraints whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes." ³⁹

7. Incorporating a Monitoring Mechanism

In 1991, at its sixth session, the Committee on Economic, Social and Cultural Rights proposed the construction of an international complaints mechanism to monitor States' compliance with the rights issued in the ICESCR in the form of An Optional Protocol on Economic, Social and Cultural Rights ⁴⁰.

The Committee on Economic, Social and Cultural Rights presented an analytical paper to the Preparatory Committee of the World Conference on Human Rights in 1993, which put forth strong arguments supporting, firstly, the need for the above mentioned Protocol. Secondly, the arguments illustrated that a violations approach to monitoring the ICESCR was essential if economic, social and cultural rights were to be viewed as legal rights. This approach would, in turn, facilitate the process of determining the content of cultural rights. The paper states that in a complaints procedure,

"the real problems confronting individuals and groups come alive in a way that can never be the case in the context of the abstract discussions that arise in the setting of report procedures. Second, the focus on a particular case provides a framework for inquiry which is otherwise absent [...] Fourth, the existence of a potential remedy at the international level provides an incentive to individuals and groups to formulate some of their economic and social claims in more precise terms and in relation to the specific provisions of the Covenant." ⁴¹

Some voices can already be heard throughout the international legal community which are in favor of this Optional Protocol. One example was the International Commission of Jurists (ICJ) held in Bangalore, India, in October 1995, who voiced support for the drafting of this Optional Protocol, in addition to their upholding of the Limburg Principles ⁴². Although there are those in favor of drafting such a Protocol, when the question of which rights would be covered by the procedure is considered, they are some who are for the exclusion of cultural rights ⁴³. While this negative attitude is still at large, UNESCO should work to inform the general public on the value of an Optional Protocol in direct accordance with international organizations, governmental organizations, and non-governmental organizations. Furthermore, such a Protocol should broadly serve the spectrum of economic, social and cultural rights, as opposed to presenting them a la carte.

8. Suggestions for Future Work

If cultural rights are to be enjoyed and respected, whether socially, religiously, linguistically, or artistically, they must be strengthened through set cultural policies. Equal respect would be declared for the cultures of, in particular, minorities, aliens, indigenous peoples, and migrant workers. Cultural rights would serve as the appropriate framework for such policies. States must not only clearly recognize cultural rights, but work for legislative, administrative, and financial measures designed to support the nourishment of cultural life so essential to a modern, multi-cultural society. Such legislation would support and provide for the boundlessly diverse expressions and activities within a cultural domain, regardless of content, provided individual rights are not infringed upon. Acceptance is only part of a State's. complete regard for cultural rights. If cultural rights are to be adhered to and implemented in their entirety, access to active participation is necessary for all disadvantaged peoples. Together, acceptance and access foster the stable development of a society.

Before practical measures can be implemented, a State must be capable of recognizing the elements that comprise a group's cultural identity. On a fundamental level, the notion of cultural identity, ''expresses the recognition of the existence and the dignity specific to each individual and each community. It is an identification of the subject of rights, and his/her liberties in a given situation." ⁴⁴ Individuals may be the result of a cultural heritage by a multitude of avenues, be it by region, economic/social class, religion, language, nationality, and/or ethnicity. Beyond respecting an individual's. resulting heritage, a State must help provide for an individual's. attempt to engage in the diversification and unification of that heritage through research and community, respectively.⁴⁵ Specifically, if a State is to take the first step in properly protecting and promoting a culture's identity, it is recommended that they acknowledge the ''encouragement of conditions set forth in U.N. Minority Rights Declaration. This requires the removal of legal obstacles to cultural development, facilitating the development of cultural institutions, respect for the distinctive characteristics and contributions of minorities, in addition to territories associated with the religious culture of an indigenous people, and, lastly, ''The provision of State resources cannot be ruled out from among these 'conditions'. ⁴⁶"

With these definitions and standards in mind, the vast array of peoples claiming cultural rights bears the potential to be overwhelming - and for many it is. The amount of bloodshed for thousands of years over cultural differences is evidence enough. However, it is not the inherent differences of culture and the recognition of these differences that bring men to arms. Rather, it is ignorance who is the culprit. It is the States duty, if not only for the sake of cultural rights but for its own survival, to actively support and promote the cultural rights of all its peoples, be they the majority or the minorities.

In practice, the State must stimulate cultural awareness and participation at several levels, the end result being a harmonious state of cultural democracy. Through its own channels, assuming the State in question is adhering to the ''conditions of encouragement" noted above, it should proceed with a vigorous campaign fostering an awareness of the various cultures within its own boundaries through education commencing with the school children and upwards, reasoning that hatred stems from ignorance. Citing Recommendation No. 84 as adopted by the Council of Europe Committee of Ministers, States should impress upon their educators several measures intended to enlighten attitudes towards various cultures. For example, training teachers to be aware of the various cultures in their country and the damage inflicted by stereotyping; to provide literature and authentic materials which instigate interest and true understanding; develop ''intercultural resource centers" in which various learning aids would be made available; establish teacher and student exchange programs with countries of minority origin; etc.⁴⁷

Secondly, the role of non-governmental organizations in the implementation and enforcement of cultural rights must be increased. Historically, NGOs. have delegated themselves to intervene primarily in matters of a political and civil nature. The time has come for the expansion of their role to be considered. Both UNESCO and states should begin to persuade NGOs. to actively support and inspire participation in programs created to produce and promote cultural pride and heighten public awareness of other cultures.

Lastly, the State should call upon the media to publicize cultural recognition and enlightenment through any avenues at their command. It is only proper and beneficial that public awareness be maximized by all means available.

Assuming that these polices and practices have been put into motion, those composing channels of enforcement should pay heed to the proposals made by the World Commission on World Culture and Development in Action 7 of Our Creative Diversity's International Agenda which was noted in the introduction. The first step suggested is to inventory those cultural rights which are not protected by international instruments. Most assuredly, this task should be left to UNESCO who, in collaboration with experts, is currently working on a comprehensive catalogue of cultural rights. In regard to the expansion of the Code of Crimes Against the Peace and Security of Mankind to include the crimes of ''ethnic cleansing" and gross violations of cultural rights, the most appropriate manner by which this aim may be obtained would be for the international community to call on the International Law Commission to include provisions regarding ''cultural genocide" in Article 17 of the Draft Code of Crimes against the Peace and Security of Mankind ⁴⁸. Considering Article's. focus on genocide, it is only appropriate that gross infringements of a cultural nature should be recognized as well. Such a realization is not ground breaking. In its commentary to the final text of a set of 20 draft articles adopted in 1996, the ILC reported that,

''It is true that the 1947 Draft Convention prepared by the Secretary-General and the 1948 draft prepared by the Ad Hoc committee on genocide contained provisions on ''cultural genocide" covering any deliberate act committed with the intent to destroy the language, religion, or culture of a group, such as prohibiting the use of the language of the group in daily intercourse, or in schools or in the printing and circulation of publications in the language of the group, or destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship, or other cultural institutions and objects of the group." ⁴⁹

With this frame of legal reference in mind, an International Office of the Ombudsperson for Cultural Rights need be established as it is envisaged in Our Creative Diversity ⁵⁰. It merits such promotion primarily because, in the process of democratic reforms which take place worldwide, and especially in Central and Eastern Europe, enjoyment of cultural rights are vulnerable and seriously threatened. Any research undertaken for the proposal of this office would be best organized and implemented within the framework of the UNESCO, but not without the active support of the States. This office could be paralleled primarily, yet on a grander scale, with that of the High Commissioner on National Minorities of the OSCE. The Office of the Ombudsperson would differ in that their focus would centre on the cultural rights of individuals and peoples. Once created, this office would not act independently. States would provide for reinforcement of accepted institutions by also founding an Office of the Ombudsperson within their own nation - one that would work in direct cooperation with the International Office of the Ombudsperson.

If the Office of the Ombudsperson is to be an effective one, the degree to which it is kept informed is of dire consequence. The extent to which cultural rights can be protected is in direct correlation with the amount and accuracy of information gathered regarding the exercise and exhibition of cultural rights and life. In pursuit of such ends, a treaty-based monitoring procedure should be utilized to provoke governments to regularly report on cultural matters not only to the Committee on Economic, Social and Cultural Rights, but labor to make these reports and/or observations readily available to a wide audience as to initiate public debate on national cultural policies. Furthermore, National Commissions for UNESCO should begin running campaigns targeted towards the reception of information garnered by national non-governmental organizations and community based organizations with the intention of providing platforms for written statements and oral submissions regarding issues surrounding the abundance (or lack thereof) of cultural awareness and activity within their respective regions.

Lastly, in the attempt to enforce cultural rights, State affirmation of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights designed to amplify the voice of both the individual or group whose rights have been alleged to be violated, would prove to be effective. The union of these three aforementioned measures would properly serve to keep public and all governmental and non-governmental parties abreast of a nations status as it relates to its respect for cultural rights.

In light of the increased interest devoted to cultural rights over the past decade through the work accomplished by UNESCO and the Committee on Economic, Social and Cultural Rights, individuals and groups alike may be enjoying their cultural lives to an unprecedented degree worldwide. Attention, however, is only the first step in the lengthy pursuit of a participatory celebration of the cultural heritage of all peoples, be they in the majority or the minority. States must come to not only recognize various cultures, but actively seek, through legislation, education, and financial aid, to protect and promote the individuals and groups whose cultures deserve to be recognized and allowed to flourish. Non-governmental organizations should also share as a stimuli for this growth of cultural awareness, be they regional or international. Cultural rights bear as much precedent in conflict prevention as do rights of a civil and political nature. Considering the military conflicts recently waged in the post-Cold War world, there is doubt to be had that, with a mutual understanding of cultures, warring factions would have been so ready to take to arms.

Endnotes

1-Our Creative Diversity: Report of the World Commission on Culture and Development, France, 1995

2- Ibid., p.282.

3- The Work of the International Law Commission, Fifth edition, UN, New York, 1996, pp.38-41; pp.142-149.

4- Our Creative Diversity: Report of the World Commission on Culture and Development, France, 1995. Op.Cit. pp282-283.

5- Filibek, G. Interventions Concerning Theme 1.1 (The European Convention on Human Rights and Cultural Rights). Council of Europe, 8th Annual International Colloquy on the European Convention on Human Rights, 1995 (Budapest), p.75.

6- The Universal Declaration of Human Rights, GA Res.217 A (III) of December 1948, Human Rights: A Compilation of International Instruments, United Nations, New York and Geneva, Vol. I, First Part, 1994, p.1-7.

7- International Covenant on Economic, Social and Cultural Rights, G.A. Res.2200A, U.N. GAOR, 21st Sess. and International Covenant on Civil and Political Rights, G.A. Res 2200A, U.N. GAOR, 21st Sess., preambles, Human Rights: A Compilation of International Instruments, op. cit. pp.7-38.

8- Steiner, H.J. and Alston, P. International Human Rights in Context: Law, Politics. Morals, Oxford: Clarendon Press, 1996, p.261-262.

9- Cassese, A; The General Assembly: Historical Perspective 1945-1989. In: Alston, P. (ed.) The United Nations and Human Rights, p.45-50; Coomans, F. Economic, Social and Cultural Rights, SIM Special No.16, Utrecht, 1995.

10- United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted 25 June 1993, reprinted in 32 ILM 1661 (1993), 14 HRLJ 352 (1993).

11- Steiner, H.J. and Alston, P. op cit., p.268.

12- Steiner, H.J. and Alston, P. op cit., p.268.

13- Alston, P., ed. Promoting Human Rights through Bill of Rights: Comparative Perspectives. Oxford: Clarendon Press, 1995.

Craven, M. The International Covenant on Economic, Social, and Cultural Rights: A Perspective on Development. Oxford: Clarendon Press, 1995.

Donnelly, J. Universal Human Rights in Theory and Practice. Ithaca, NY: Cornell University PRess, 1989.

Eide, A., C. Krause and A.Rosas, Economic, Social and Cultural Rights: A Textbook. Dordecht: M.Nijhoff, 1995.

Sohn, L., ed. Guide to Interpretation of the International Covenant on Economic, Social and Cultural Rights. Irvington, NY: Transitional Publishers, 1993.

14- Weber, R., The New Europe - Hope and Disillusionment. Human Rights and Cultural Policies in a Changing Europe: The Right to Participate in a Cultural Life, Report of the European Round Table, Helsinki, Finland, April 30 - May 2, 1993, Henlsinki University Press, 1994. pp. 29 - 30.

15- Joyner, C. and J. Dettling, Bridging the Cultural Chasm: Cultural Relativism and the Future of International Law. California Western International Law Journal 1989-1990, Vol. 20 no.2, p.275-314.

Warzazi, H. Preliminary report of the Special Rappoteur on traditional practices affecting the health of women and children, Economic and Social Council Commission on Human Rights, 47th Sess.

Waht's. Culture Got to Do With It? Excising the Harmful Tradition of Female Circumcision. Harvard Law Review, vol. 106, no. 8, 1993, p. 1944-1961. See also Universality of Human Rights in Pluralistic World, proceedings of the Colloquy organised by the Council of Europe in cooperation with the International Institute of Human Rights, Strasbourg, 17-19 April, 1989, N.P. Engel Verlang, Strasbourg, 1990.

16- Article 8.1 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 47/135 of 18 December 1992, Human Rights: A Compilation of International Instruments, United Nations, New York, 1978, p.140.

17- The Universal Declaration of Human Rights, GA Res.217 A (III) of 10 December 1948, Human Rights: A Compilation of International Instruments, op. cit., p. 6. (Article 27).

18- American Declaration of the Rights and Duties of Man, approved by the Ninth International Conference of American States on 2 May, 1948, Twenty Five Human Rights Documents, Centre for the Study of Human Rights, Columbia University, 1994, p.195.

19- Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), adopted 17 November 1988, not in force, 291 LM 1447 (1990).

20- African Charter on Human and Peoples' Rights, adopted 27 June 1981, entered into force 21 October 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, reprinted in 21 ILM 58 (1982).

21- World Conference on Cultural Policies: Final Report. Paris, France: UNESCO, 1982, P.59 (Recommendation No. 1).

22- African Charter on Human and Peoples' Rights, op cit., Article 22.

23- Ibid., Article 29.

24- See: Kymlicka, W., ed. The Rights of Minority Cultures. New York: Oxford University Press, 1995.

Phillips, A. and Rosas, A., eds. The UN Minority Rights Declaration. Turku/Abo - London, 1993.

25- UNESCOand Human Rights: standard setting instruments, major meetings and publications (Symonides J., and V. Volodin, selection of Documents and introduction). Paris, France, UNESCO, 1996.

26- See: Reports of the Committee on Economic, Social and Cultural Rights presented to the UN Economic and Social Council (Report on the Fifth Session 9-27 March 1987 to Report on the Fourteenth and Fifteenth Sessions 30 April - 17 May 1996, 18 November - 6 December 1996)

27- Universal Declaration of Human Rights, op. cit., Article 1.

28- Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It, 1976, Adopted on 26 November 1976 by the General Conference of UNESCO at its nineteenth session, UNESCO and Human Rights: standard setting instruments, major meetings and publications, op. cit., p.252.

29- Declaration on the Right to Development, GA Res. 41/128, 4 December, 1986, Human Rights: A Compilation of International Instruments, op. Cit. Vol.I, Second Part, pp 548 & endash; 553; see Radin M.L., The Right to Development as a Mechanism for Group Autonomy; Protection of Tibetan Cultural Rights, Washington Law Review Assoc., Vol. 68, No. 3, 1998. pp.695-714.

30- See Prott Lyndel V., Cultural Rights as People's Rights in International Law, in: Crawford James, The Rights of People, Oxford, 1988, 93ff.

31- European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNITS 221; also Twenty-Five Human Rights Documents. New York, NY: Centre for the Study of Human Rights, Columbia University, 1994, p. 147-170.

32- Leander, B. Preliminary List of Cultural Rights, preliminary paper prepared for UNESCO, 1996.

33- Preliminary Draft Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms on the Recognition of Cultural Rights, Institute for Intedisciplinary Ethical and Human Rights Studies, Fribourg University, Switzerland.

34- Preliminary Draft Declaration of Cultural Rights, document produced at a meeting of experts, held in Fribourg, on 23-25 March, 1995, organised by UNESCO, the Council of Europe, the Fribourg University Institute for Interdisciplinary Ethical and Human Rights Studies, and the Swiss National UNESCO Committee, Paris, 18-19 January 1996.

35- The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,: Human Rights Quarterly, vol. 9, no. 2, May 1987, p. 122-135.

36- Ibid., pp.112-126.

37- Ibid., p.133.

38- Report of the Committee on Economic, Social and Cultural Rights on the Fifth Session (26 November - 14 December 1990), Supplement No. 3; General Comment No. 3, p.83.

39- Ibid., p. 85.

40- Report of the Committee on Economic, Social and Cultural Rights on the Fourteenth and Fifteenth Sessions (30 April-17 May 1996, 18 November-6 December 1996), Supplement No. 2, p. 91.

41- ''Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights" (Analytical paper adopted by the Committee on Economic, Social and Cultural Rights at its Seventh Session, 11 December 1992).

42- International Commission (ICJ) of Jurists Review: Special Issue on Economic, Social and Cultural Rights and the Role of Lawyers (Bangalore, October 1995). December 1995, no. 55.

43- Report to the Committee on Economic, Social and Cultural Rights on the Fourteenth and Fifteenth Sessions (30 April-17 May 1996), Supplement No. 2, p.99.

44- 2,1. Working Paper, pg 17, UNESCO-Council of Europe-IIEDH Conference, Fribourg, 23-25 March, 1995.

45- Cultural Identity, 2.1 Working Paper, les droits culturels : contenu et mise en oeuvre. Reunion d'experts, UNESCO Conceil de l'Europe -IIEDH Conference, Fribourg, 23-25 March, 1995.

46- Ibid., See: Phillips, A. and Rosas, A., eds. The UN Minority Rights Declaration, Turku/Abo, London, 1993.

47- European Commission Against Racism and Intolerance, Recommendation No. R (84) 18, September, 1984.

48- Report of the International Law Commission on the work of its 48th Sess., 6 May & endash; 26 July, 1996, GAOR, 51st sess., Suppl. No.10 (A/51/10) p.85.

49- Ibid., p.91.

50- Our Creative Diversity, op. cit. pp 282-283.